Report of Teleconference May 21 between the Parties on the Tribunal Appeal

May 23, 2015 Borys Holowacz Latest Posts



The Tribunal judges asked:

  1. the parties to provide the Tribunal with the remedy they are seeking in accordance with s. 145.2.1(4) of the EPA; and
  2. the Tribunal to determine and give directions regarding evidence to be heard to address remedy. 

Eric Gillespie, lawyer for PECFN, said that we were seeking the Tribunal to reiterate its revocation of the project’s approval.

In addition, since the Appeal Court had allowed Gilead Power’s ‘New Evidence’ to be heard and the Tribunal must then hear it, PECFN wants Gilead to submit it to the Tribunal and parties for our response.

Gilead’s lawyer replied that their ‘new evidence’ was part of the record from the Divisional and Appeal Courts and PECFN should submit ‘new’ evidence in response.

Tribunal judge Wright made it clear that the Tribunal had never officially received Gilead’s new evidence and so in order to be sure everyone was dealing with the same document, requested that Gilead send it to all of them.

Note that after the Tribunal had made its decision July 3, 2013, Gilead and MOE submitted what they claimed was ‘new evidence’ that the government would lease the land for the access roads which Gilead would close to public vehicles with gates. Gilead then appealed the Tribunal decision to the Divisional Court where PECFN had that scheme excluded on the grounds that it wasn’t new at all because closing the access roads had been discussed for some years.  PECFN’s response to that submission is in the record also, but was not heard by the court either due to the exclusion.

Gilead also made the statement that “the usual process of an ERT is: an appeal; a hearing; then a discussion of remedies.  The remedies were not discussed and so they contend that this continuance is the ‘second part’ of the original ERT – to discuss possible remedies ‘after all the evidence is in’.”

The truth is, of course, that the Tribunal made a decision and chose the remedy of revoking the approval.

Therefore the PECFN appeal is raising new legal questions once again!  Can a corporation demand a second kick at the can when they get a Tribunal decision they don’t like?

Finally the Tribunal judges told Gilead to send their submission immediately and asked everyone to come back to another teleconference on Monday to further discuss 1. and 2. above.

PECFN will continue to demand a hearing where we can prove that it is the construction of the entire project, including the access roads, which will cause the irreversible harm to Blanding’s turtle habitat just as the Tribunal decided.

The matter of South Shore Conservancy’s application to be accepted as a party to the appeal will be decided in June after written submissions by the existing parties.

Cheryl Anderson



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